In an unprecedented decision, a federal appeals court ordered the U.S. government to release a memo detailing the legal justification behind the killing of American citizens by drone strikes overseas.
The 2nd U.S. Circuit Court of Appeals ruled on Monday that the government can’t claim the memo needs to be secret anymore, because various U.S. officials have repeatedly acknowledged the so-called targeted drone strikes program in general and the killings of three American citizens in Yemen in 2011 in particular. This is an addition to a U.S. Department of Justice White Paper, leaked by NBC News and confirmed by DOJ, which explained the legal rationale behind drone strikes.
“Whatever protection the legal analysis might once have had has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the DOJ White Paper,” wrote Judge Jon O. Newman in a decision (embedded below), that was made unanimously by a three judge panel in Manhattan.
Monday’s decision overturns a January 2013 lower court ruling that allowed the Department of Justice to keep secret a memorandum that provided the legal justification for the drone strikes that killed three United States citizens in Yemen: Anwar al-Awlaki, a cleric who allegedly had become a prominent Al-Qaeda spokesperson, his 16-year-old son Abdulrahman, and Samir Khan.
At the time, U.S. District Judge Colleen McMahon ruled in favor of secrecy despite the fact that she found herself in a “paradoxical situation” of letting the government claim it was legal to kill Americans outside of declared war zones, while also claiming it can’t reveal the legal reasoning behind that decision.
“The Alice-in-Wonderland nature of this pronouncement is not lost on me,” she wrote.
The lawsuit in Monday’s decision was filed by The New York Times, which has filed a Freedom of Information Act request to see the legal memo, with the support of the American Civil Liberties Union (ACLU).
It’s unclear whether the DOJ will now appeal the decision, and, for now, there’s no timetable for the release of the documents.
Both the Times and the ACLU, however, celebrated the ruling.
“This is a resounding rejection of the government’s effort to use secrecy and selective disclosure to manipulate public opinion about the targeted killing program,” ACLU Deputy Legal Director Jameel Jaffer said in an emailed statement. “The public has a right to know why the administration believes it can carry out targeted killings of American citizens who are located far away from any conventional battlefield.”
“The court reaffirmed a bedrock principle of democracy: The people do not have to accept blindly the government’s assurances that it is operating within the bounds of the law; they get to see for themselves the legal justification that the government is working from,” David McCraw, the Times‘ lawyer, said in a statement.
Here’s the full ruling from the 2nd U.S. Circuit Court of Appeals.